from the Iowa District Court for Story County, Steven P. Van
Marel, District Associate Judge.
Muehlenthaler appeals his convictions of three counts of
sexual exploitation by a school employee.
R. Cahill of Cahill Law Offices, Nevada, for appellant.
J. Miller, Attorney General, and Thomas J. Ogden, Assistant
Attorney General, for appellee.
by Doyle, P.J., and Mullins and McDonald, JJ.
Muehlenthaler appeals his convictions of three counts of
sexual exploitation by a school employee. Muehlenthaler
contends his trial counsel was ineffective in failing to
object to: (1) the State's misstatement to the jury about
Muehlenthaler's plea; (2) testimony about
Muehlenthaler's alleged use of racially insensitive
comments; (3) the State's questions which amounted to
backdoor hearsay; (4) expert testimony provided by a
non-expert; (5) the State's violation of its own motion
in limine; and (6) the State's statements concerning
Muehlenthaler's failure to testify or produce evidence.
Muehlenthaler also claims the trial court erred in admitting
into evidence statements he made during a school
Background Facts and Proceedings
the evidence presented at trial, the jury could find the
following facts. In the fall of 2013, Muehlenthaler was a
part-time band instructor for the North Polk School District.
At that time, K.M. was a sixteen-year-old high school senior
who volunteered to assist Muehlenthaler with his band classes
during her free periods. Her duties included assisting with
set up and lessons, providing accompaniment on piano, grading
papers, and assisting in a fundraiser. As the fall semester
continued, both began sharing personal information about
themselves, including family and home life. At some point in
November, on a day K.M. was upset about family issues,
Muehlenthaler asked for permission and proceeded to hug K.M.
From that point on, Muehlenthaler would hug K.M. before she
left his classroom for the day. The relationship also
included Muehlenthaler making jokes of a sexual nature and
divulging information about his sex life with his wife. Both
parties then began emailing each other. K.M. continued
volunteering during the 2014 spring semester, including
volunteering extra hours and days. This resulted in K.M.
staying past the period she volunteered for and being late to
her next class. Muehlenthaler signed off on her tardy slips.
either January or February 2014, Muehlenthaler invited K.M.
to his house after an evening basketball game, informing her
that his wife would not be there. On this occasion, they sat
and laid on his couch with their clothes on, "spooning
and cuddling." K.M. also met Muehlenthaler on
Valentine's Day in downtown Ames to assist in delivering
thank-you cards to businesses that had helped during a school
event. After handing out the cards, Muehlenthaler and K.M.
sat in his car and talked. On another occasion after
Valentine's Day, they met in a store parking lot and
cuddled in K.M.'s van. On this occasion, Muehlenthaler
reached under K.M.'s shirt and touched her breasts.
and K.M. text messaged one another frequently, including
sexual content. At some point in February, while in his
classroom, Muehlenthaler asked K.M. if she wanted to have
sex. After agreeing, Muehlenthaler and K.M. texted their
plans on when and where they planned to have sex.
Muehlenthaler and K.M. met at a local motel. K.M. waited in
her car as Muehlenthaler went in to purchase a room. On that
date, someone checked in under the name of P.S., the name of
K.M.'s classmate. This individual paid in cash and there
is no record of any identification provided to the motel
employee. The motel's policy is to not provide a room
without appropriate identification; however, a front desk
clerk testified that not all staff have followed this policy.
K.M. testified this person was Muehlenthaler. Muehlenthaler
gave K.M. the room number after he checked in, and they had
sexual intercourse that night. K.M. identified that after
Muehlenthaler undressed, she noted that he wears an insulin
pump on his right buttock, something she could not see during
the day while at school. Muehlenthaler is a diabetic.
and K.M. had sexual intercourse several more times over the
course of the next few months, including at
Muehlenthaler's house. Their last sexual encounter
occurred in mid-July, by which time K.M. had graduated from
high school. Muehlenthaler ended the relationship, informing
K.M. that he would not be able to be with her anymore because
his wife wanted to get pregnant. He gave her a sex toy as a
break-up gift to "replace him." At all times during
the sexual relationship, Muehlenthaler was employed as a
teacher at North Polk. Several times during the relationship,
Muehlenthaler told K.M. not to tell because he would lose his
job, lose his wife, and get into trouble.
first reported the relationship in 2016 after she began
college and saw a notice on social media that Muehlenthaler
accepted a full-time position at a different school district.
She reported the relationship to her college professor, who
then made an anonymous third-party report to the principal of
Muehlenthaler's new school. School officials from
Muehlenthaler's new district received the anonymous
report approximately two weeks after Muehlenthaler began
working. The principal and superintendent met with
Muehlenthaler the morning of August 30 to inquire about the
anonymous report and asked Muehlenthaler if he had any
information. Muehlenthaler informed the officials that the
report must be about his high school helper and gave
K.M.'s name. He informed the officials that he had become
uncomfortable with the dynamic between himself and K.M. after
she shared personal information about herself and family.
Muehlenthaler also indicated he reported the situation to
officials at North Polk. After the meeting, Muehlenthaler
returned to his classroom and taught for the remainder of the
day. Ten minutes before the official end of that school day,
Muehlenthaler was informed he was being placed on
administrative leave pending the outcome of the school
investigation. During a formal interview on September 15,
Muehlenthaler refused to answer questions and was informed of
his right to refuse to answer questions.
eventually spoke to the superintendent herself and ultimately
to the police. She also turned over the sex toy Muehlenthaler
gave her to the police. In March 2017, Muehlenthaler was
charged by trial information with four counts of sexual
exploitation by school employee, in violation of Iowa Code
section 709.15(5)(a) (2013). Prior to the trial in October,
the State filed a motion in limine seeking to exclude any
evidence of K.M.'s sexual history, which the court
granted. During the hearing on the motion in limine,
Muehlenthaler's counsel sought the exclusion of evidence
of statements made by him to school officials during their
investigation into the allegations of an inappropriate
student relationship, arguing it would violate
Garrity. The court granted the request in part,
determining that Muehlenthaler's statements made to
school officials after he was informed he would be placed on
administrative leave were to be excluded.
found Muehlenthaler guilty as charged. Muehlenthaler filed
post-trial motions in arrest of judgment and for a new trial.
He argued there was impermissible burden shifting and claimed
insufficiency of the evidence. Further, he argued the
testimony of statements he made during a school investigation
violated Garrity. The court denied both motions,
finding there was sufficient evidence to establish the
elements of the offenses, no shifting of the burden of proof,
and no Garrity violation.
court sentenced Muehlenthaler on each count to an indefinite
term of incarceration not to exceed two years to run
consecutively. His sentence also included an order to
register as a sex offender, placement on the sex offender
registry, and a ten-year special sentence pursuant to Iowa
Code section 903B.2.
Standard of Review
review ineffective-assistance-of-counsel claims de novo.
State v. Harrison, 914 N.W.2d 178, 188 (Iowa 2018).
Muehlenthaler must show counsel "failed an essential
duty and that the failure resulted in prejudice."
Id. at 206 (quoting State v. Schlitter, 881
N.W.2d 380, 388 (Iowa 2016)). "[C]ounsel fails his or
her essential duty by 'perform[ing] below the standard
demanded of a reasonably competent attorney.'"
Id. (quoting Ledezma v. State, 626 N.W.2d
134, 142 (Iowa 2001)). We presume "the attorney
performed competently" and "we avoid
second-guessing and hindsight." Ledezma, 626
N.W.2d at 142. Muehlenthaler must also demonstrate "that
there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." Id. at 143 (quoting
Strickland v. Washington, 466 U.S. 668, 964 (1984)).
Ineffective Assistance of Counsel
makes several claims of ineffective assistance of counsel. We
will address each in turn.
Muehlenthaler contends counsel was ineffective for failing to
object and correct a prosecutor's statement after reading
the trial information to the jury. A review of the record
shows that before beginning its opening statement, the State
read the trial information against Muehlenthaler to the jury.
After reading all of the offenses charged, the State then
stated, "To these charges Mr. Muehlenthaler has entered
a plea of guilty." He contends that because his counsel
failed to object or correct this misstatement, it prejudiced
the jury and he did not receive a fair trial.
criminal conviction is not to be lightly overturned on the
basis of a prosecutor's comments standing alone, for the
statements or conduct must be viewed in context; only by so
doing can it be determined whether the prosecutor's
conduct affected the fairness of the trial." United
States v. Young, 470 U.S. 1, 11 (1985).
"Inappropriate prosecutorial comments, standing alone,
would not justify a reviewing court to reverse a criminal
conviction obtained in an otherwise fair proceeding."
after the jury was selected in this case, the court explained
to the jury the sequence of events of the trial. It
instructed the jury that the attorneys would make opening
statements but those statements were not evidence. The court
explained the State would read the trial information about
the offenses charged and, again, instructed the jury that the
trial information was not evidence. The State then gave its
opening statement. Defense counsel followed with an opening
statement that ended with him saying at the end of the
evidence he would be asking the jury to deliberate and
"find Kevin not guilty of each and every count."
the close of the evidence, the court instructed the jury.
Several jury instructions clearly identify that the jury is
the decision-making body of Muehlenthaler's guilt or
innocence on each charge, Muehlenthaler is presumed innocent,
this presumption remained with him throughout the trial
unless the evidence established guilt beyond a reasonable
doubt, and, most importantly, Muehlenthaler pled not guilty
to all charges. The instructions also reminded the jury of
the court's earlier admonition that statements and
comments by the attorneys were not evidence and their verdict
must be based upon the evidence presented and the jury
on the record before us, we cannot determine why counsel did
not object to the misstatement of his not guilty plea, and
thus cannot determine whether counsel's performance fell
below that of reasonably competent counsel. Likewise, the
record is inadequate to decide the prejudice issue.
Consequently, we preserve the claim for possible
Defendant's past racial statements
next contends trial counsel failed to object to testimony
from K.M. that Muehlenthaler made racially insensitive
comments to her about students at the school. Muehlenthaler
claims the testimony was highly prejudicial and inadmissible
character evidence which should have resulted in counsel
moving for a mistrial.
review of the record shows that during K.M.'s direct
examination, after being asked about the nature of the jokes
Muehlenthaler made while joking around with her, K.M.
And he also said some jokes that made me feel kind of
uncomfortable, like when one of the kids who played trumpet,
we were having a lesson, and he said that he was sad because
his dad was moving back to Mexico, and then when he left the
room he snickered and said that his dad was getting deported.
And he also told me that when he was in college him and one
of his friends would go to KFC and make fun of the black
people, and generally just a lot of jokes that I thought were
kind of really inappropriate and kind of immature.
counsel did not object.
Rule of Evidence 5.404(b)(1) prohibits the admission of
"[e]vidence of a crime, wrong, or other act . . . to
prove a person's character in order to show that on a
particular occasion the person acted in accordance with the
character." To determine if evidence is admissible under
rule 5.404(b), it must meet a three step analysis:
(1) the evidence must be relevant and material to a
legitimate issue in the case other than a general propensity
to commit wrongful acts;
(2) there must be clear proof the individual against whom the
evidence is offered committed the bad act or crime; and
(3) if the first two prongs are satisfied, the court must
then decide if [the evidence's] probative value is
substantially outweighed by the danger of ...